Prescience: There Will be More Religious Protections, Even With This Setback

By D’Andre Chapman

Religious protections have been a huge topic sense the perils of the pandemic.[1]  Recently, a case concerning religious accommodations under Title VII, gave the courts another opportunity to extend religious protections.[2]

Small v. Memphis Light Case

In Small v. Memphis Light, Gas & Water, Jason Small (“Small”) worked as an electrician for Memphis Light, Gas & Water (“Memphis Light”) for more than a decade.[3]  Additionally, Small is a devout Jehovah’s Witness.[4]  In 2013, Small was injured on the job.[5]  This injury required Small to change positions.[6]  Small desired to be a revenue inspector.[7]  However, Memphis Light instead offered him a position as a service dispatcher.[8]   Memphis Light did not make any other offers, and threatened termination if Small did not acquiesce and take the service dispatcher position.[9]

Around this same time, Small conveyed the new position would conflict with the practice of his religion.[10]  Small told Memphis Light that he had services on Wednesday and Sunday evenings, and that he had community work on Saturdays.[11]  Small asked the company to reassign him; however, Memphis Light conveyed “that the accommodations would impose an undue hardship on the company and that its union required shifts be assigned based on seniority.”[12]  Instead, Memphis Light suggested that Small should attempt to swap shifts with his colleagues.[13]  Thereafter, Small sued Memphis Light for religious discrimination, inter alia, in the United States District Court or the Western District of Tennessee at Memphis.[14]  Memphis Light motioned for summary judgement.[15]  The summary judgement motion was granted and the present appeal ensued.[16]

Pursuant to Title VII, religion refers to “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”[17]  Caselaw has effectuated the statute and constructed a burden shifting framework to determine whether an employer failed to make religious accommodations for an employee.[18]  Accordingly, for its prima facie, the employee must prove that: (1) the employee has a bona fide sincerely held, religious belief, the practice of which conflicts with an employment duty, (2) the employee informed their employer of the belief and conflict, and (3) the employer threatened the employee or subjected the employee to discriminatory treatment, including discharge, because of their inability to fulfill the job requirements.[19]  

If the employee proves a prima facie case, the burden shifts to the employer.[20]  The employer must show either that it initiated good faith efforts to accommodate reasonably the employee’s religious practices, or that it could not do so without undue hardship to it’s business.[21]  An “undue hardship” means “anything more than a de minimis cost.”[22]  Essentially, if an accommodation is costly to an employer, they do not have to accommodate the employee.[23]  

Here, Memphis Light averred that “additional accommodations would have impeded the company’s operations, burdened other employees, and violated its seniority system.”[24]  The court held these accommodations are sufficient to constitute undue hardship.[25]  Thereby affirming the district court’s grant of summary judgement.[26]

What does the Future Hold?

The de minimis cost standard has been scrutinized as essentially disregarding one’s freedom of religion in the employment context.[27]  For example, last year Justice Thomas implied the Supreme Court should consider overruling the de minimis cost standard.[28]  Additionally, Justice Gorsuch reiterated Justice Thomas’ sentiments.[29]  The Court had the opportunity to review the Memphis Light case mentioned herein.[30]  However, the Supreme Court declined to hear Small’s appeal.[31]  In his dissent of the decision to deny certiorari, Justice Gorsuch whom was joined by Justice Alito reasoned that Title VII statute does not contain the words “de minimis cost.”[32]  Additionally, Gorsuch stated, religious rights under employment law “are the odd man out” because “alone among comparable statutorily protected civil rights an employer may dispense with [religious rights] nearly at whim.”[33]  Accordingly, because of the plain language of Title VII, and the lack of protection afforded religious rights Gorsuch would have reviewed Small’s case.[34]

In brief, although the Court chose not to review the case of Smalls, Justices Thomas, Alito, and Gorsuch have all recently lambasted the de minimis cost standard.[35]  Hence, religious rights are in the purview of the Supreme Court, and the de minimis cost standard may not last much longer.[36]  

[1] Andre Chung & Lawrence Hurley, U.S. Supreme Court Rebuffs Claims of Workplace Religious Bias, Reuters (Apr. 5, 2021 9:57 AM),; Leah Litman, Supreme Court’s Decision to bar Restrictions on Religious Services in New York is an Ominous Sign, the appeal (Dec. 9, 2020),

[2] Idsee Small v. Memphis Light, Gas & Water, 952 F.3d 821 (6th Cir. 2020)

[3] 952 F.3d at 823.

[4] Id.

[5] Id. 

[6] Id. 

[7] Id. 

[8] Id.

[9] Id.

[10] Id. at 824.

[11] Id. 

[12] Id. 

[13] Id. 

[14] Id. 

[15] Id.

[16] Id. 

[17] 42 U.S.C. § 2000e(f) 2020.

[18] See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (establishing the burden shifting framework for claims of discrimination under title VII); TWA v. Hardison, 432 U.S. 63, 79 (1977) (explicating the definition of undue hardship and conveying that courts will not interfere with otherwise valid collective bargaining agreements); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67 (1986). Most religious cases are accommodation cases. 

[19] See 411 U.S. at 802-03.

[20] Id. 

[21] 952 F.3d at 825.

[22] Id.

[23] Id.

[24] Id.

[25] Id. (“Our court has found similar cost to be more than de minimis”). 

[26] Id.

[27] Chung & Hurley, supra note 1.

[28] Id. 

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

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